Monday, December 13, 2010

RICHMOND - A federal judge in Virginia ruled 13 December 2010 that a key provision of the nation's sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama's signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.

The ruling comes in a case filed by Virginia Attorney General Ken Cuccinelli II (R), who said he was defending a new state statute that made it illegal to require people to carry health insurance in Virginia.

"I am gratified we prevailed," Cuccinelli said in a statement. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."

Federal officials responded that they are confident the statute will ultimately be upheld. A victory for Cuccinelli at this early legal stage means no more for the law's fate than previous rulings that have found the opposite, they have argued.

"We are disappointed in today's ruling but continue to believe - as other federal courts in Virginia and Michigan have found - that the Affordable Care Act is constitutional," Tracy Schmaler, a spokeswoman for the U.S. Department of Justice, said in a statement. "There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law, and we are confident that we will ultimately prevail."

At the White House, spokesman Robert Gibbs pointed to the other rulings in favor of the individual mandate. "We are confident that [the individual mandate] is constitutional, he said. "We disagree with the ruling."

According to a new Washington Post-ABC News poll, a slim majority of all Americans - including almost all Republicans - oppose the health-care reform law. But the legislation's detractors are split on whether and how much of it should be rolled back.

Overall, 52 percent of those polled oppose the overhaul to the health-care system; 43 percent are supportive of it. Fully 86 percent of Republicans are against the legislation; 67 percent of Democrats support it. Independents divide down the middle, with 47 percent in favor and the same number opposed.

Most of those who oppose the health-care changes - 59 percent - want the law repealed, but 38 percent would prefer a "wait and see" approach. Democrats who oppose the law generally support waiting to see how the law operates, while most Republicans would prefer to see it repealed.

Republicans, though, are divided about whether the pullback should be a total repeal or only a partial one. Among Republicans opposed to the health-care package, 39 percent want a complete repeal, and 32 percent want to cancel parts of the law.

In large part, the mixed approach to amending the legislation reflects high Republican support for components of the legislation.

The Virginia suit is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.

The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.

The ruling by Hudson, an appointee of President George W. Bush's, was widely anticipated based on tough questions he lobbed at Obama administration lawyers in oral arguments in his Richmond courtroom.

But the legal defeat will deal a significant political blow to the law, cheering those who have predicted its demise will come from adverse legal rulings rather than congressional repeal.

The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.

He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.

A senior administration official has called that route "very unusual," noting that another suit is already pending before the Fourth Circuit, but declined to take the issue entirely off the table.

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